The 25th Amendment to the Constitution of Pakistan seeks to establish a uniform regulatory foundation for the FATA. Nevertheless, the process and speed through which the amendment was passed, completed after a seven-day sprint, raises concerns regarding the military-civil balance of power and the unholy tradition of top-down reforms, even desirable ones. Moreover, the adoption of a new presidential (interim) regulation could continue a brutal legacy, including the collective punishment of communities in the tribal areas - writes Professor Muhammad Zubair.

Introduction

On 31 May 2018, the President of Pakistan signed the Constitution (Twenty-fifth Amendment) Act, 2018 (hereafter the 25th Amendment), a landmark constitutional legislation with far reaching implications for the people of Federally and Provincially Administered Tribal Areas (FATA and PATA). The statement of object and reasons of the bill declares the integration and mainstreaming of tribal areas and its people in mainland Pakistan as the main goal of the amendment. To that end, the 25th Amendment changes eight articles of the 1973 Constitution of Pakistan. It eliminates the special (discriminatory) status of FATA (Art.1) and territorially integrates it with the province of Khyber Pakhtunkhwa (hereafter KP), and PATAs with the provinces of Balochistan and KP (Art.246). It eliminates the twelve seats reserved for FATA in the national assembly (lower house of federal parliament) and transfers them to seats reserved for KP in the assembly (Art.51). Similarly, it eliminates eights seats reserved for FATA in the senate (upper house of federal parliament) (Art.59). As a corollary of FATA’s integration with KP, the seats allotted to KP provincial assembly are also increased in order to give adequate representation to people of newly added areas to the province. The most important of all these constitutional changes is the elimination of Art. 247, which had hitherto kept FATA under the administrative, legislative, financial and judicial control of the federal government. The said article had also barred the extension of the jurisdiction of the regular courts to FATA, including the High Court and the Supreme Court of Pakistan, and thus deprived its people from enjoying judicial protection of their fundamental constitutional rights. In short, the amendment completely integrates FATA in the province of KP and thus mainstreams the areas and its people in the rest of Pakistan.

The 25th Amendment turns the status of FATA residents from subjects to real citizens of the state for the first time in the seventy years history of Pakistan.

The constitutional amendment is accompanied by the FATA Interim Governance Regulation, 2018 (hereafter Interim Regulation), which repeals and replaces the Frontier Crimes Regulation, 1901 (hereafter FCR) – a draconian law which has thus far governed FATA. The Interim Regulation provides ‘for an interim system of administration of justice, maintenance of peace and good governance’ in FATA till its formal merger with KP.

Background

Pakistani parliamentarians have made several efforts in the recent past at mainstreaming FATA. The last such attempt was made in May 2017 when the National Assembly passed the Constitution (Thirtieth Amendment) Act, 2017 (hereafter 30th Amendment Bill). It was accompanied by the Tribal Areas Rewaj Act, 2017 (hereafter Rewaj Bill). An earlier piece provided an in-depth analysis of the two instruments. Amongst other things, the piece explained and introduced FATA, its constitutional status and the system of its governance under the British-era FCR – a black law which had authorized the state to inflict collective and inhumane punishments upon its people. It was shown that the combination of FCR and constitutional provisions relating to FATA had deprived its people from constitutional and judicial protection of fundamental rights, and that the proposed constitutional and legal reforms fell short of meeting the expectations and aspirations of the people. In continuation of that, this piece draws parallel between and carries comparative analysis of the 30th Amendment Bill and the 25th Amendment on the one hand, and between the Rewaj Bill and Interim Regulations, on the other. It is advisable to read the two pieces together.

The 30th Amendment Bill vs. the 25th Amendment

It was pointed out in our earlier piece that the 30th Amendment Bill fell short of mainstreaming FATA. It merely proposed amendment in one article of the constitution by giving representation to FATA in the provincial assembly of KP and for that matter proposed an increase in the number of its seats. It did not, for example, territorially integrate FATA with KP. It also retained and preserved the executive, administrative, legislative and judicial authority of the federal government over FATA. It was argued that any meaningful mainstreaming of FATA would require the discontinuance of federal control over FATA and its territorial integration with KP. In addition, as the jurisdiction of supreme and high courts was extended to FATA by the Rewaj Bill – an ordinary federal legislation – which could similarly be taken away by another piece of federal law, it was argued that a secured and permanent protection of the fundamental rights of FATA people needed constitutional entrenchment of the jurisdiction of regular courts. Seen in that background, the 25th Amendment is obviously a progressive piece of constitutional legislation that addresses almost all the shortcomings of the 30th Amendment and Rewaj Bills.

The Process of Making the 25th Amendment

Our earlier piece had also pointed out that due to the security paradigm, commonly known as the ‘strategic depth policy’, the security establishment of Pakistan had thus far remained the main stumbling block in the way of legal and constitutional reforms in FATA, despite decades long calls for such reforms. The continuance of that policy required preserving the status-quo in FATA which, in turn, meant keeping it the ‘strategic backyard’ of Pakistan. That policy explains the failure of all previous efforts of civilian governments at reforming and mainstreaming FATA. However, due to the ever-deepening alienation amongst the youth of FATA, as demonstrated by recent rise of Pashtun Tahaffuz (Protection) Movement (PTM), the security establishment was confronted with a situation where it has to revisit its decades-long policy on FATA, which led to the 25th Amendment.

The 25th Amendment was clearly pushed through the civilian institutions by the security establishment of Pakistan.

The lightning speed with which the 25th Amendment was passed was not only reflective of the civil-military imbalance in Pakistan, but also shows that the amendment process was less than satisfactory. For example, on 18 May, the National Security Committee of Pakistan for the first time adopted proposals to integrate FATA with KP. On 22 May, the federal cabinet decided to prepare a comprehensive bill to that effect. Within two days on 24 May, the National Assembly tabled and passed the 25th Amendment bill (then 31st amendment bill) with 229 votes – just one vote more than the required two-thirds majority. The next day on 25 May, the Senate tabled and passed the bill with 71 votes – two votes above the required two-thirds majority. Since the bill would alter the territorial boundaries of KP, the provincial assembly of KP was constitutionally required to pass the bill with two-thirds majority. Accordingly, the KP assembly tabled and passed the bill on 27 May, and the President assented to it on 31 May.

No meaningful deliberative process or debate took place in federal and provincial legislatures where the bill was tabled and passed on the same day and within a matter of hours.

In this way, within seven days, the 25th Amendment was conceived and went through the process of its approval by two federal legislative houses, the provincial assembly of KP and the President. No meaningful deliberative process or debate took place in federal and provincial legislatures where the bill was tabled and passed on the same day and within a matter of hours. None of the objections raised by some legislators were addressed by the treasury benches. In the constitutional history of Pakistan, this super accelerated process of constitutional amendment is paralleled only by the 21st Amendment which established military courts for trying terrorists. That amendment too was incorporated in the constitution under the pressure of the military establishment. Most notably, the KP provincial assembly completed its five years term on 28 May – just a day after it approved the 25th Amendment. Similarly, the national assembly completed its term on 31 May– six days after it approved the amendment. It could thus be safely concluded that the outgoing federal and provincial legislatures acted merely as rubber stamps of the military establishment for purposes of passing the amendment.

The Rewaj Bill vs. Interim Regulation

In our earlier piece, it was shown that the Rewaj Bill reinforced control of the federal government over FATA and thus militated against the idea of mainstreaming FATA and its people. It was also shown that despite its claim to preserve Rewaj (local customs and traditions) in accordance with the aspirations of the tribal people, it went against the very grain of tribal traditions. As the Interim Regulation incorporates and preserves some provisions of the Rewaj Bill with slight changes in terms of retaining the institution of the council of elders for purposes of determining questions of facts involved in civil and criminal cases, it is subject to similar critique levelled against the latter. In the interest of avoiding repetition, those arguments will not be repeated here. Following is the comparative analysis of the two pieces of legislation:

First, the Rewaj Bill was conceived to be a permanent piece of legislation. The Interim Regulation, as the nomenclature suggests, is provisional. The preamble of the latter declares that it establishes an ‘interim system’ of governance ‘till the merger of FATA with province of KP’. However, it is a comprehensive piece of legislation with fifty-two clauses (as compared to only twenty clauses of the Rewaj Bill) with no sunset clause to indicate the point of time when the merger will have taken place. It rather authorizes the Governor of KP to declare from time to time any area of FATA to become Administered Area (cl. 48.2). It also authorizes the future provincial assembly of KP to alter, repeal or amend provisions of this law by an Act of the provincial assembly. These provisions of the Interim Regulation patently go contrary to the intent and objects of the 25th Amendment which merges FATA with KP with immediate effect in clear terms and without any reservations.

The Interim Regulation was prepared by a civil-military bureaucracy behind closed doors and its contents go against the principles and objects of the 25th Amendment.

Second, while the Rewaj Bill was processed through the parliament and was thus subject to public scrutiny and debate, the Interim Regulation came as a bolt from the blue. During the last week of May, while the 25th Amendment was still in process, the President passed this most comprehensive piece of legislation on May 28 without any prior public knowledge or involvement of the parliament or its members. It was prepared by a civil-military bureaucracy behind closed doors and its contents go against the principles and objects of the 25th Amendment. In addition, and most importantly, for the purpose of promulgating the Interim Regulation, the President exercised his powers under Art. 247 of the constitution and that too just two days before signing the 25th Amendment, which eliminated the said article from the constitution altogether. Given that the 25th Amendment does not preserve the Interim Regulation through a saving clause or otherwise, the constitutionality of its provisions is highly doubtful, and it is vulnerable to judicial challenge.

Third, while the Rewaj Bill provided for federally appointed ‘judicial officers’ to act as judges and courts in the proposed administration of justice for FATA, the Interim Regulation empowers the executive officers – already administering FATA – with tremendous judicial powers, which in some instances are not even possessed by the regular courts. Again, these provisions of the Interim Regulation go against the intent, spirit and legal effects of the 25th Amendment, which in the ordinary course should have brought FATA with immediate effect under the regular administration of justice applicable to mainland Pakistan. The Interim Regulation further reinforces the steel framework of bureaucracy which the 25th Amendment intended to dismantle.

The Interim Regulation also empowers the governor to relocate entire villages if found to be expedient for defense purposes (cl.26).

Fourth, both the Rewaj Bill and the Interim Regulation claim to repeal and replace the FCR. However, while the former does so without any qualifications, savings and reservations (cl. 20), the latter validates ‘all orders made and issued, actions taken, proceedings initiated or completed’ under the FCR (cl. 52.1). In addition, while the Interim Regulation ostensibly repeals the FCR, it retains the concept of collective responsibility and punishment (cl.47 read with 3rd Schedule), and also provides for some punishments that are harsher and were never provided even in the FCR. For example, it empowers an executive officer (deputy commissioner) to arrest, detain and debar any person or group of persons from access to ‘settle’ areas of Pakistan (all areas outside FATA or PATA) if such a person or persons, in his subjective opinion, is/are ‘acting in hostile, subversive or offensive manner towards the State or any person residing within the settle area of Pakistan’ (cl.20). Similarly, the executive officers of the government also have the judicial power of forfeiting public emoluments in whole or in part and for a term or in perpetuity for actual commission or on account of mere preparation to commit certain offenses (cls.21-24). The Interim Regulation also empowers the governor to relocate entire villages if found to be expedient for defense purposes (cl.26). It also authorizes an executive officer (deputy commissioner) to attach or dispose any building used by terrorists – even against the will of its owner and without paying compensation to the owner (3rd Schedule, cl. 5). The most dangerous of all these provisions is the authorization of private persons to arrest and hand over to an executive officer (deputy commissioner), without an order from the local administration and without a warrant, a person ‘who has been concerned in any cognizable office or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned’ (cl. 28).

Concluding Remarks

The 25th Amendment is no doubt a landmark constitutional legislation which fundamentally changes the special and discriminatory status of FATA by integrating it into mainland Pakistan. By providing judicial protections to fundamental constitutional rights of its people, it turns their status from subjects to real citizens of the state for the first time in the seventy years history of Pakistan. It releases the people of FATA from the clutches of draconian laws such as the FCR and from the highhandedness of the oppressive bureaucratic machine established thereunder. For the first time, it gives the people of FATA a meaningful democratic representation in the provincial assembly of KP as well as in the national assembly. This is however not to say that the process of its enactment was satisfactory or democratic. As explained above, the initiative for the 25th Amendment did not come from the people of FATA. Their constitutional fate was rather decided by others for them. The people were for example never asked in a meaningful and democratic way if they wanted FATA to join KP or become an independent province. The sledgehammering of the amendment through the federal and provincial legislature whose life was over and while the 2018 general elections are around the corner, and that too in only seven days, pose several question marks on the democratic legitimacy of the amendment. Having said that, the people of FATA still got a better constitutional deal. They were not a party to establishing or endorsing their pre-25th Amendment status either. That was rather imposed on them.

It has perhaps become absolutely important to safeguard against the recent phenomenon of hasty constitutional amendments.

However, unfortunately, what the 25th Amendment gives to the people of FATA with one hand, the Interim Regulation takes away with the other, albeit provisionally. The Interim Regulation further reinforces the steel bureaucratic framework in FATA which has remained in place since the colonial times. It gives tremendous judicial powers to bureaucrats which they never enjoyed even under the FCR. It provides for harsher and inhumane individual and collective punishments which are not only against the fundamental rights of the citizens under the constitution but also against all norms of the civilized world. It is only a matter of time that its provisions will be successfully challenged in the superior courts on the touchstone of fundamental rights and the 25th Amendment itself.

Lastly, it has perhaps become absolutely important to safeguard against the recent phenomenon of hasty constitutional amendments, as reflected by the 21st and 25th amendments. Some constitutions, particularly recent ones, require the publication of draft amendment bills and some also impose a period between the tabling of a constitution amendment bill and its approval. The new parliament, which is about to be elected within weeks, might consider amending the constitution on similar lines. This will ensure the constitution is not treated as a nose of wax and enough time is available for deliberation and public debate inside and outside the walls of the political organs. It will also shield civilian governments against pressures from the military establishment and enable them to assert their democratic authority.

Muhammad Zubair served as Assistant Professor of Law at the University of Peshawar, Pakistan. He is currently a PhD Fellow at the Maurer School of Law, Center for Constitutional Democracy at the Indiana University Bloomington.

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